SOx On The Run

What a mess in South Oxfordshire, with the council now on a collision course with MHCLG over its submitted local plan, which it would dearly love to withdraw.

One of the last things that the previous Conservative administration at South Oxfordshire District Council did before purdah kicked in ahead of the May 2019 local elections was to submit its local plan to the Secretary of State for examination, on 29 March 2019.

The housing numbers in the plan were part of a funding deal that the Oxfordshire authorities had struck with MHCLG last March. Part of the deal was that the plan be submitted for examination by 1 April.

So far so good.

The Lib Dems and Greens fought the election on an anti housing growth ticket, seeking the withdrawal of the plan.

Be careful what you wish for. The council is now in Lib Dem control. As with a number of local authorities which changed political control in May, it has been placed with a dilemma, once political promises meet reality.

Its cabinet considered a report from its officers on 3 October 2019. Some highlights:

“In March 2018, the Council and the other authorities in Oxfordshire signed the Oxfordshire Housing and Growth Deal (Deal). This committed the Councils to support the delivery of 100,000 new homes across Oxfordshire between 2011 and 2031. In return, over a period of five years, Government offered £215 million of funding; £150 million for infrastructure projects, £60 million for affordable housing, and £2.5 million for the preparation of a Joint Statutory Spatial Plan and £2.5 million for wider administrative costs associated with the Deal. The Deal committed the Oxfordshire authorities to submitting outstanding local plans for examination by 1 April 2019 (South Oxfordshire & Oxford City).

Paragraph 010 of the Guidance states that where a Deal is in place, it is appropriate for the Council to consider whether the Deal justifies uplifting our housing need beyond the standard method. The emerging Local Plan considered that the Deal justified an uplift in need to 775 homes per annum (in line with the SHMA recommendations for South Oxfordshire).

In March 2019, Oxfordshire County Council (OCC) was successful in bidding for £218 million of funding from the Government’s Housing and Infrastructure Fund (HIF). It is intended this will contribute toward providing new infrastructure costing £234 million across South Oxfordshire and the Vale of White Horse districts. OCC are finalising an agreement with Homes England (on behalf of Government) before they will secure any of the offered funding.”

“On 26 August 2019, the leader of the council received a letter (Appendix 13) from the Secretary of State for Housing, Communities and Local Government setting out his view that “the HIF is contingent on identified housing sites coming forward in an adopted Local Plan and, as the previous Housing Minister set out, the government expects progress on your Local Plan in order to access this funding”.”

Following further discussions, MHCLG wrote again. As summarised in the report:

“In the letter of 20 September 2019, it states that should the council choose to withdraw the plan “it would immediately put at risk the significant investment that the Government has made available to South Oxfordshire and the wider County, including jeopardising the £218m recently allocated through the HIF (Didcot Garden Town)”. The letter also says, “this is because the funding is dependent on the delivery of specific sites”.

However, the letter of 20 September 2019 is less categoric in relation to the Deal compared to the HIF, stating that “withdrawing the plan will also undermine the wider ambitions and commitments of the Housing and Growth Deal and therefore potentially impact future investment to support ambitions either directly or as part of the Growth Deal of Oxford-Cambridge Arc.”

The report put forward three options:

“Option A) Allow the emerging Local Plan to continue through its examination. Any modifications proposed during the examination will be considered at the sole discretion of the Inspectors.

Option B) Withdraw the Local Plan from examination and make changes to it ahead of a further regulation 19 consultation and resubmission to the Inspectorate for examination. The extent of the changes to the Plan that would be possible under Option B would be limited to no significant changes, in comparison to those that could be made under Option C. Any representations made at that Regulation 19 would be reported to and considered by the Inspector and would not be within the control of the Council.

Option C) Withdraw the Local Plan from examination. The Council would commence work on a new Local Plan. This will allow the Council to prepare a significantly different plan (subject to compliance with the law, and national policies and guidance). The Council would need to undertake at least two rounds of public consultations (Regulation 18 and 19) before submitting the new plan for examination”

Officers examined the advantages and risks of each option, together with the financial and legal implications, before concluding that “there are clear advantages over the disadvantages and officers therefore recommend Option A.”

The Cabinet voted down the recommendation in favour of a resolution that reflected option C:

“MOTION

•That Cabinet recommends Council to:

•(a) withdraw the emerging South Oxfordshire Local Plan 2034,

•for the following reasons:

•the uplift above the standard method from 627 homes to 775 homes a year is excessive, and the existence of the Growth Deal should not be used as a justification for this uplift

•the overall supply of homes in the Local Plan period is considered excessive as it is over 5,000 homes greater than the need identified for South Oxfordshire, even allowing provision for Oxford City’s unmet housing need.

•the Local Plan does not give sufficient weight to responding to the climate emergency that we face as recognised by the decision of Council of 11 April 2019

•concerns about site selection issues including:

•that the scale of Green Belt release is not justified

•flawed site selection having regard to the sustainability and deliverability of strategic allocations

•concerns about the impact of the housing mix delivery and density policy

•(b) withdraw from the Oxfordshire Statements of Common Ground linked to the emerging South Oxfordshire Local Plan 2034

•(c) agree to commence work as soon as practicable on a new ambitious Local Plan, to seek to address the above concerns

•(d) request a report on the merits of a joint Local Plan with neighbouring authorities

•(e) request the Ministry of Housing, Communities and Local Government to provide financial support to support a new ambitious Local Plan

•(f) explore other opportunities for funding

•(g) bring forward revenue expenditure on a new Local Plan currently estimated at £2 million into the next Medium-Term Financial Plan period, representing the most cost-effective option

•(h) ask officers to prepare a new Local Development Scheme and work programme and bring this to Cabinet for approval.”

The full council meeting to consider the resolution was to take place on 10 October 2019. If ratified, the submitted plan would be immediately withdrawn, as an authority is empowered to do at any stage prior to adoption pursuant to section 22 of the Planning and Compulsory Purchase Act 2004.

MHCLG was clearly rattled by the prospect of the plan being torn up and its consequences for Oxfordshire housing and infrastructure planning more generally. The Secretary of State wrote to the leader of the council on 9 October 2019 in these terms:

“Following South Oxfordshire District Council Cabinet’s decision on 3 October to recommend withdrawing the emerging South Oxfordshire Local Plan (“the Plan”), I am considering whether to give a direction to South Oxfordshire District Council in relation to the Plan under section 21 of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”).

The government remains committed to making sure every community has an up-to-date and sufficiently ambitious Local Plan. Withdrawing the Plan at this stage is instead likely to create uncertainty and expose communities to speculative planning applications.

Therefore, in exercise of the powers under section 21A of the 2004 Act (inserted by section 145(5) of the Housing and Planning Act 2016), I hereby direct South Oxfordshire District Council not to take any step in connection with the adoption of the Plan, while I consider the matter further. This direction will remain in force until I withdraw it or give a direction under section 21 of the 2004 Act in relation to the Plan.

I would like to work constructively with you to ensure that South Oxfordshire is able to deliver the high-quality homes and infrastructure required to support jobs and growth in the local community. As I set out in my letter to you on 26 August 2019, progressing the Plan is an essential step to delivering the Oxfordshire Housing and Growth Deal. I have therefore asked my officials to get in touch with your officers to discuss next steps and will keep you updated while I consider this matter further.”

The council’s chief executive responded the next morning, on 10 October in uncompromising terms:

“As you are aware, s.21A gives you the power to make a holding direction only where you are considering making a direction under s.21 of the Act. Importantly, section 21 gives you the following powers:

(i) Where you think a local development document is unsatisfactory, to direct the local planning authority to modify the document in accordance with that direction (s.21(1)(a));

(ii) To direct the Local Planning Authority to submit the local development document to you for your approval (s.21(4)). In circumstances where (as here) the Plan has already been submitted for examination, the Inspectors would have to report to you (s.21(5)); or

(iii) To direct that the Plan be withdrawn (s.21(9)).

We cannot see how you could properly consider that any of the directions that you could make under s.21 would accord with your clearly stated view that it is essential that the plan should be progressed. In particular, we do not understand that you consider the plan to be unsatisfactory in any way (s.21(a)); that there is anything in the Plan that needs your approval (s.21(4)); or that you think the Plan should be withdrawn (s.21(9)). Section 21A does not give you the power to make a general holding direction – it must be tied to a proper consideration of whether you intend to make a direction under s.21. Given that it would be inconsistent with your stated position for you to issue a direction under any of the powers available to you under s.21, it appears that there was no proper basis for your decision to issue the direction under s.21A.

Given the importance of this matter we require a response to this letter no later than 3pm today, either explaining the basis on which you consider it might be appropriate for you to issue a direction under s.21, or (assuming you accept that there would be no basis for issuing such a direction) withdrawing the s.21A Direction.”

The Secretary of State did indeed respond that day:

“You are correct that a holding direction made pursuant to s.21A of the 2004 Act requires the Secretary of State to be considering whether to give a direction under s.21 of that Act. As your Cabinet have stated they wish to withdraw the plan, the Secretary of State is considering whether to give a direction under s.21(4) of the 2004 Act for the plan (or any part of it) to be submitted to him for his approval instead of the Council.

In summary, this was not an attempt to issue a ‘general’ holding direction but to allow time for the Secretary of State to consider whether to give a direction under s21(4) of the 2004 Act.

I hope this has clarified the situation for you.”

The council meeting went ahead, but the local plan item was pulled from the agenda.

So what next?

The leader has issued this statement:

Surely, the council’s reading of the legislation is correct – under section 21 the intervention power applies if “the Secretary of State thinks that a local development document is unsatisfactory”. I doubt whether section 21 can be relied up to prevent a plan from being withdrawn, which would mean that the holding power in section 21A is also not available.

However, I’m not sure that this assist the council in practice. Whilst the Secretary of State may be reluctant to take this step, if the council were to seek to challenge the lawfulness of the purported direction, wouldn’t he simply use his default power in section 27, available where the “Secretary of State thinks that a local planning authority are failing or omitting to do anything it is necessary for them to do in connection with the preparation, revision or adoption of a development plan document”? He may “a) prepare or revise (as the case may be) the document, or (b) give directions to the authority in relation to the preparation or revision of the document”. Does this cover the current circumstances? If it doesn’t then the Government certainly missed a trick when extending the Secretary of State’s intervention powers by way of the Housing and Planning Act 2016.

The section 27 procedure is referred to in my 18 November 2017 blog post Local Plan Interventions. Reasons need to be given, but it is pretty plain that other Oxfordshire authorities are not impressed at all at the South Oxfordshire volte face, evidenced for instance by a letter from West Oxfordshire District Council dated 10 October 2019.

With a nod to my 17 August 2019 blog post Gestation Of An Elephant: Plan Making, what is better: to let nature take its course, or intervention?

Simon Ricketts, 12 October 2019

Personal views, et cetera